Seattle Trademark Lawyer

On June 18, the Ninth Circuit affirmed the Western District of Washington’s grant of partial summary judgment in Experience Hendrix LLC v. The James Marshall Hendrix Foundation, finding that father Al Hendrix had no right of publicity to assign to the plaintiffs/appellants because no posthumous right of publicity existed in New York at the time of Mr. Hendrix’s death.

In its short opinion, filed only 15 days after hearing oral argument, the Ninth Circuit found:

“Experience Hendrix, LLC and Authentic Hendrix, LLC (collectively ‘Experience’) claim they own the exclusive rights to publicize Jimi Hendrix’s personality under the Washington Personality Rights Act (“WPRA”), Wash. Rev. Code § 63.60.030. Applying Washington conflict of law rules, we first determine there is an actual conflict between Washington and New York law because the WPRA recognizes a posthumous right of personality, while New York did not recognize such aright at the time of Jimi Hendrix’s death in 1970.

“Since an actual conflict exists, Washington choice of law rules direct us to determine which jurisdiction has the ‘most significant relationship’ to a given issue, looking at the factors listed in Restatement (Second) of Conflict of Laws § 6 (1971). The WPRA does not contain a statutory directive to apply Washington law to this case because it does not include a choice of law provision nor does the legislative history expressly indicate an intent that the WPRA apply to out-of-state facts. Having considered the factors stated in Restatement (Second) of Conflict of Laws § 6(2) (1971), and in light of the general rule that New York law should apply because it was the domicile of Jimi Hendrix at the time of his death, we conclude that New York has the most significant relationship to the intellectual property rights and the parties at issue here.

“Because we conclude that New York law applies to this case and because we hold that no posthumous right of publicity existed in New York at the time of Jimi Hendrix’s death, we affirm the district court’s grant of partial summary judgment and its award of attorney’s fees in favor of the James Marshall Hendrix Foundation.”

This decision seems to bode well for Electric Hendrix, LLC, and the other makers of “Hendrix Electric” vodka, who Experience Hendrix and Authentic Hendrix sued in March for, among other things, using the deceased singer’s name, image, and signature without their authorization. As STL previously wrote, the Western District’s grant of summary judgment on the right of publicity issue likely explains why Experience Hendrix and Authentic Hendrix did not assert a right of publicity claim in that suit. (Additional STL coverage here.)

The case cite is Experience Hendrix LLC v. The James Marshall Hendrix Foundation, No. 05-36029 (9th Cir.).